Otto R. Brenner, Ltd. v. Loeb-Nunez Tobacco Co.

Opinion by

Mr. Justice Simpson,

We might well affirm, the judgment in this case on the ground that all the assignments of error violate the rules of this court. The first has no exception to support it, and both it and the second violate rule 28, in that defendants do not print in the ássignment the evidence admitted; the next three violate rule 27, in that they do not quote the answers to the points referred to; and the last three are not assignments of error at all, but only the general reasons usually specified on a motion for a new trial, — that the verdict is against the evidence, the weight of the evidence, and the law. The judgment, however, must be affirmed on the merits.

Two different contracts are involved in the litigation. By the first defendant agreed in writing to sell and deliver to plaintiff ten bales of “Java A.A.A.1” tobacco, according to a sample exhibited to plaintiff at the time the contract was made. As to this contract defendant says in its paper book: “There can be no dispute as to the fact that there was a breach of contract due to the defendant’s failure to deliver this tobacco, and there is no dispute between the parties or counsel as to the law regarding the measure of damages.” It claims, however, that the sample was of tobacco that was six or eight years old, that such tobacco deteriorates with age, and that there was no evidence as to the market value of tobacco of that age. On the other hand, plaintiff’s witnesses, — including defendant’s salesman who sold the tobacco to plaintiff, — testified that the sample exhibited to plaintiff was of tobacco in perfect condition, and stated its market value in that condition. It follows, of course, that if the jury believed the evidence of plaintiff, and the verdict establishes that they did, he was entitled to recover, as in fact he did, the difference between the market price of that kind of tobacco in perfect condition and the contract price at which defendant agreed to deliver it.

The second contract was in writing also, and by it defendant sold to plaintiff one bale of Sumatra tobacco, with an “option of seven more ten days after arrival.” The option was plaintiff’s and not defendant’s, and was unconditional, except that it had to be exercised within ten days after the arrival of the first bale. When the latter was received defendant was at once notified that plaintiff exercised his option to receive the seven additional bales. Defendant refused to deliver them, alleging as an excuse that when it sent the one bale it notified plaintiff “we have no more of this lot,” and that plaintiff accepted the one bale with full knowledge of that fact. If we were to give to that notice the effect defendant claims for it, that no more bales would be delivered, he would not be helped thereby. A seller cannot escape liability by partial performance of his contract, with notice that he will not fully perform. To so hold would mean nothing less than that notice of an intended breach would excuse the breach; and that acceptance of part performance would be a waiver of full performance. Happily, the law countenances no such inequitable contention.

The judgment of the court below is affirmed.